The Supreme Court Hall of Fame

June 25, 2013

If the Supreme Court had a Hall of Fame, surely Oliver Wendell Holmes would have been one of its charter members. Holmes served as a justice for almost 30 years and wrote some of the benchmarks opinions of American legal history.

Holmes came to the Court as a Civil War veteran, a former Harvard Law School professor, and 20-year justice of the Massachusetts Supreme Judicial Court. He was known for concise and quotable opinions; among his gems are the “clear and present danger” standard of free speech and his dictum that “the life of the law has not been logic; it has been experience.”

In addition to laying out the foundations of modern First Amendment jurisprudence, Holmes understood the pitfalls of judicial intervention into economic decisions, and he scrupulously espoused judicial restraint and deference to legislative acts. Holmes is one of the most-cited of all American Supreme Court justices, and one of the most cited of all legal scholars in the 20th century.

Still, the full scope of his greatness did not become apparent until Holmes was about 80 years old, about two-thirds through his Supreme Court tenure. He became known as the Great Dissenter, not just for his many dissents, but for the frequency with which his dissents later became accepted law.

Justice Ruth Bader Ginsburg was 80 years old this year, having come to the Court 20 years ago, following an already distinguished career as a Columbia Law School professor, a constitutional litigator of the highest order, and a federal appeals judge. For all of the accomplishments of her career, I wonder if Ginsburg, like Holmes, is only now coming fully into her own at the age of 80. I certainly hope that, like Holmes, Ginsburg serves until she is 90.

Last term, Justice Ginsburg wrote an outstanding opinion sustaining the Affordable Care Act on both Commerce Clause and taxing power grounds, an opinion that I predicted would “gain the acclaim of history.” Today she issued a similarly outstanding opinion dissenting from the Court’s terrible decision striking down the “preclearance” provision of the Voting Rights Act.

The preclearance provision says that a state with a history of discrimination against minorities in voting rights must obtain federal approval for changes in voting procedures before those changes can be implemented. Congress most recently renewed the preclearance provisions in 2006. At the time, both houses of Congress were majority Republican, and of course the president was Republican. The votes in both houses were overwhelming.

Theoretically, Congress could revive preclearance. The Court’s 5 – 4 ruling was that the statutory formula for determining which states are subject to preclearance is unconstitutional, so Congress could adopt an updated formula. But as we all know, things are different today than they were in 2006. A bipartisan Congressional vote to protect the voting rights of minorities is no longer possible.

Here’s what changed after 2006. Americans elected an African-American president in 2008, with huge majorities of African-American, Asian-American, and Hispanic support, but less than half of white votes. That president successfully advocated Keynesian economic measures that pushed us deep into budgetary deficit to fight the worst recession in 75 years, and he successfully advocated a national solution to America’s health care problems.

Republicans went into opposition – not opposition in the ordinary political sense, but more in the Groucho Marx sense of “whatever it is, I’m against it.” Even if they were for it before, they’re against it now. Republicans used to be big proponents of federal protection for minorities’ voting rights, all the way back to the passage of the Fifteenth Amendment during Reconstruction. But no more.

Seeing that Democratic constituencies are growing while Republican constituencies are shrinking, and worried that Republicans could therefore be facing serious long-term electability problems, Republicans have reacted with a wide range of legislative efforts intended to suppress the vote of the Democrats’ constituencies – specifically, racial and ethnic minorities.

Voter ID laws, for example, disproportionately affect lower income voters – and the more crassly partisan voter ID laws deem firearms permits, but not a university student IDs, to be sufficient. Ending or limiting early voting, especially during evening or weekend hours, disproportionately affects Democratic voters. Proof-of-citizenship requirements are aimed at Hispanic and Asian-American voters.

Justice Ginsburg’s opinion in today’s Voting Rights Act decision reviews some of the shocking evidence of racial animus in states that were subject to preclearance. In one especially egregious case, Ginsburg quotes FBI recordings of Alabama state senators referring to African-Americans as “Aborigines” and plotting against a particular referendum in fear that the referendum would boost black voter turnout for the election. These conversations occurred, she points out, “not in the 1870’s, or even in the 1960’s, they took place in 2010.”

Without preclearance, protection of voting rights from the ravages of racially motivated voter suppression measures must rely on federal litigation. For 100 years after the adoption of the Fifteenth Amendment, federal litigation failed to redress racially motivated voter suppression measures. As Justice Ginsburg notes, that is why Congress created preclearance in the first place. And even when litigation is successful, the judicial victory may come only years later, after elections have been turned by unconstitutional voter suppression measures.

Congress could be counted on, just seven years ago, to deal decisively with the problem of voter suppression, but things have changed. Preclearance was for half a century the most effective protection of minority voting rights through administrations Democratic and Republican. Preclearance is over.